PROBATE PROCESS
WHAT IS PROBATE?
Probate is the Court procedure for:
- formal approval of a will by the Court as the valid last will of the deceased; and
- formal confirmation by the Court of the appointment of the person who will act as the executor of the estate.
In effect, probate is what gives the executor the authority to act on behalf of the deceased.
During probate, the two key questions that the Court must address are:
- Is this the last will of the deceased?
- Is this will valid?
- Is the proposed estate trustee the right person to administer this estate?
PROBATE IS NOT ALWAYS REQUIRED.
Probate is only required when Court approval of the vesting of the assets of the deceased in the estate trustee is required – either to validate the will, or the choice of executor, and with respect to the executor, either because there may be a dispute about who it should be or because some beneficiaries are unable to consent on their own (for instance, people under disability including minors). Many estates, particularly those of ‘the first spouse to die’, or, which do not involve real estate or significant financial assets do not need probate. Conversely, if the estate includes real estate that does not automatically vest in someone like the spouse of the deceased, then probate will almost always be required.
- the nature of the assets in the estate, and
- whether the choice of executor, or actions of the executor, may be contested by one or more beneficiaries (inheritors) or other people.
Generally, financial institutions and land registry offices will require probate to confirm that the estate trustee is authorized to receive the assets and funds that belonged to the deceased person.
PROBATE FEE CALCULATOR
CANADIAN ESTATE COST CALCULATOR
- real estate (houses, condos, apartments, cottages) owned by the deceased in his or her name alone or as a tenant in common (not ‘in joint tenancy’);
- shares of a publicly traded company (stocks listed on a stock market); or,
- funds or investments held at a financial institution (bank, trust company, brokerage) held solely in the name of the deceased and not ‘in joint tenancy’ with another person (note that sometime these institutions will not require probate if the amounts are nominal).
- there is (or is likely to be) any dispute about the choice of estate trustee, or
- the actions of the estate trustee are likely to give rise to any dispute, or,
- any beneficiary is unable to consent (because they are a minor child, or, an adult lacking capacity).
Legal fees for applications for ‘probate’, as well as other advice to the ‘estate trustee’ are usually borne by the estate.
However, the expenses must be reasonable, and, they must be incurred by the executor securing advice or assistance to fulfill the executor’s duties, and not, for instance, for the executor’s personal benefit.
If the executor has a dispute with one or more beneficiaries, it can be quite difficult to determine where legal advice ‘for the executor’ ends and where legal advice for the individual, who also happens to be the executor begins.
